On Sunday, Professor Ruthann Robson of the Constitutional Law Prof Blog discussed state anti-masking laws and the interesting impact those laws could have during Halloween. She begins:

Many states have anti-masking statutes, criminalizing the wearing of a mask or identity concealing face covering.

In some states, the statutes are known as anti-Klan statutes, although by their terms they do not limit their coverage to Klan regalia. The Georgia Supreme Court upheld the state's anti-masking statute, O.C.G.A. 16-11-38, against a First Amendment challenge in State v. Miller (1990). Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute, argued that the statute was overbroad. In addressing Miller’s argument, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK. Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”